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DONNA A. WACHTER v. JOSEPH P. ASCERO (12/01/88)

filed: December 1, 1988.

DONNA A. WACHTER, APPELLEE,
v.
JOSEPH P. ASCERO, APPELLANT



Appeal from the Order entered February 8, 1988 in the Court of Common Pleas of Philadelphia County, Family Division, at No. D.R. 83-07874.

COUNSEL

Herbert R. Weiman, Philadelphia, for appellant.

Fern Lynn Kletter, Assistant District Attorney, Philadelphia, for appellee.

Olszewski, Del Sole and Johnson, JJ.

Author: Del Sole

[ 379 Pa. Super. Page 619]

This is a direct appeal from an order denying a petition to vacate a support order which provided that Joseph P. Ascero pay $12.00 per week for the support of Joseph Michael Wachter, plus $3.00 arrears due the Department of Public Assistance.

[ 379 Pa. Super. Page 620]

A complaint for support was filed by Donna Wachter naming the petitioner as the defendant in 1983. Blood tests were requested but the Appellant voluntarily and in writing acknowledged paternity and entered into an agreed support order for the child.

In May of 1986 the Appellant's petition to reopen the issue of paternity and his request for HLA blood studies were denied. Appellant then filed a motion for reconsideration of his petition requesting HLA testing. In the hearing on this motion the following colloquy ensued:

APPELLANT'S ATTORNEY: We are here, Your Honor, for reconsideration. We had filed to allow blood testing. This child was actually born in '83. There was an order for blood testing in 1984, and at that time the parties agreed not to have blood testing. And you heard testimony at the prior hearing from both parties at least from Mr. Ascero that this was something that was done, the mother of the child was saying to him why should you do this to me and to the child because in fact he had lived together with her during the early years that this child was born and he had grown to love the child, the child had grown to love him.

Our problem, Your Honor, is simply this: Mr. Ascero in fact still visits the child, he is paying support under the order. He would like to know, because the doubts that were raised by the mother on the one hand, by someone else who admitted being the father, he is even willing to agree that he would continue paying support, but he would like to know for sure that he is the father of this child. He feels that it would be helpful for the child and for himself, because this doubt having been brought to light, he would like to know, and that's why he wants the blood testing. And he would agree, as I say, to continue paying support even if it is determined that he is not or likely not to be the father of the child by virtue of the blood testing. So that he is here really because he would like to settle his mind . . .

THE COURT: There is a great principle in the law that the Court does not order a futile ...


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